You are here: / / EXPERTS MAY NOT RELY ON DISPUTED FACTS IN RENDERING AN OPINION IN A MEDICAL...
, ,

EXPERTS MAY NOT RELY ON DISPUTED FACTS IN RENDERING AN OPINION IN A MEDICAL MALPRACTICE CASE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court in this medical malpractice action, noted that experts cannot rely on disputed facts when rendering an opinion:

Although defendants submitted affidavits from medical experts opining that the individual defendants did not deviate from the standard of care and that any alleged deviation was not a proximate cause of the postsurgery medical complications, those experts relied solely on the symptoms as documented in the medical records of [two of the defendants]. … [T]hose symptoms are vastly different from the symptoms allegedly reported to the remaining defendants and demonstrated by plaintiff before the surgery. It is well settled that experts may not rely upon disputed facts when rendering an opinion … . Moreover, we note that defendants’ experts failed to address plaintiff’s contention that, had he been timely diagnosed, he would not have been required to undergo the surgery in the first place. … “By ignoring the [allegation that the remaining defendants’ malpractice caused plaintiff to undergo the very surgery that caused the brain bleed], defendant[s’] expert[s] failed to tender[ ] sufficient evidence to demonstrate the absence of any material issues of fact’ . . . as to proximate causation and, as a result, [the remaining] defendant[s] [were] not entitled to summary judgment” with respect to those parts of their respective motions and cross motions … . Kubera v Bartholomew, 2018 NY Slip Op 08784, Fourth Dept 12-21-18

 

You might also like
DENIAL OF MOTHER’S REQUEST FOR AN ADJOURNMENT WAS AN ABUSE OF DISCRETION (FOURTH DEPT).
PLAINTIFFS ALLEGED A TEENAGER WHO COMMITTED RACIALLY-MOTIVATED MASS MURDER WAS ADDICTED TO SOCIAL MEDIA CONTENT PRESENTING THE VIEW THAT WHITES ARE BEING REPLACED BY NON-WHITES; PLAINTIFFS ALLEGED THE SOCIAL MEDIA PLATFORMS WERE DEFECTIVELY DESIGNED TO BE ADDICTIVE; OVER A TWO-JUSTICE DISSENT, THE DEFENDANT SOCIAL MEDIA PLATFORMS WERE DEEMED IMMUNE FROM SUIT BASED UPON THIRD-PARTY CONTENT PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENCY ACT (FOURTH DEPT).
TRAFFIC ACCIDENT CASE REMITTED FOR A DETERMINATION WHETHER THE STATE WAS LIABLE UNDER A SECOND IMPACT THEORY, EVEN THOUGH THE STATE WAS NOT RESPONSIBLE FOR CAUSING THE DRIVER TO COLLIDE WITH THE STEEL BEAMS ACROSS THE ENTRANCES TO THE CLOSED BRIDGE, THE STEEL BEAMS WERE WELDED TO THE BRIDGE AT A HEIGHT WHICH ALLOWED A CAR TO PASS UNDER THEM, CONSTITUTING A DANGEROUS CONDITION AS A MATTER OF LAW (FOURTH DEPT). ​
A TAX FORECLOSURE PROCEEDING IS AN IN REM ACTION AGAINST THE PROPERTY, NOT THE PROPERTY OWNER; THEREFORE THE ACTION WAS NOT A NULLITY DESPITE THE DEATH OF THE OWNER (FOURTH DEPT). ​
PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).
THE CAUSES OF ACTION FOR A STIGMA-PLUS 43 USC 1983 VIOLATION AND DEFAMATION SHOULD HAVE BEEN DISMISSED; THE CAUSES OF ACTION WERE BASED UPON A STATEMENT BY THE SCHOOL DISTRICT ACCUSING PLAINTIFF OF DISREGARDING COVID POLICY AND ENDANGERING STUDENTS; PLAINTIFF DID NOT SUFFER ECONOMIC HARM AND THE STATEMENT WAS PRIVILEGED (FOURTH DEPT).
DEFENDANT CAR DEALERSHIP OWNED THE CAR IN WHICH PLAINTIFF, ITS SALESMAN, WAS INJURED DURING A TEST DRIVE; THE DEALERSHIP, AS PLAINTIFF’S EMPLOYER, IS IMMUNE FROM SUIT UNDER THE WORKERS’ COMPENSATION LAW AND IS NOT VICARIOUSLY LIABLE AS THE OWNER OF THE CAR UNDER THE VEHICLE AND TRAFFIC LAW (FOURTH DEPT).
QUESTION OF FACT WHETHER DEFENDANT SAW WHAT WAS TO BE SEEN IN THIS BICYCLE-CAR COLLISION CASE, SUPREME COURT REVERSED, TWO JUSTICE DISSENT (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ISSUE OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY SHOULD HAVE SEEN THE CAR... ALTHOUGH THE PROSECUTOR WAS GUILTY OF SERIOUS MISCONDUCT, DEFENDANT DID NOT...